Democrats looking to block Donald Trump’s Supreme Court pick have a surprisingly large array of weapons they can employ in that effort. The Senate is particularly well suited to the task of obstructing and interfering with the process because of its long history in which built-in delays, procedures, and rules slow down the mechanisms of government to a crawl.
The Senate isn’t known for being “The Greatest Deliberative Body in the World” for nothing.
Senate Majority Leader Mitch McConnell may have the 50 votes needed to confirm Trump’s choice, but the situation is complicated enormously by the proximity to the election. If McConnell is going to get to a confirmation vote on the floor, he’s going to need all GOP hands on deck as there are almost certainly going to be numerous procedural roll call votes that Democrats are going to demand.
So instead of leaving town to politic back home, senators are going to have to remain close to Washington. Those GOP senators who are particularly vulnerable — about a half dozen or so who are fighting for their political lives — are going to start chafing at the bit to get out of town to try and save their seats.
Democrats know this, which means that McConnell is going to have to find some shortcuts through the rules morass Democrats are going to put in front of him.
Here are just a few ways Democrats can obstruct, delay, and interfere with the confirmation vote on the floor. They are contained in a memo from some Senate rules experts reported by The Intercept. Expect Democrats to employ most of them.
Exercising Rights To Delay Senate Action Generally
Speaking at Length — In the absence of a unanimous consent agreement governing time to debate or cloture, a Senator who gets recognized to speak can speak at length.
Objecting to Routine Consent Agreements — Any Senator may object to routine unanimous consent agreements, such as those to adjourn, to recess, to approve the Journal, or to dispense with the Morning Hour. Forcing roll-call votes on routine motions to adjourn or recess would require Senators to come to the Capitol and also prevent the Senate from taking other action during the time that it would take for Senators to come to vote.
New Legislative Day — If the Senate adjourns without a unanimous consent agreement providing for the handling of routine business at the beginning of a new legislative day, a new legislative day starts with the morning hour, a 2-hour period with a number of required procedures. As part of the morning hour, any Senator could make a non-debatable motion to proceed to an item on the Senate calendar.
Something as simple as a motion to adjourn or recess could be used to delay if enough senators become involved. That’s because such a motion takes precedence over any motion to proceed. Each and every motion to adjourn or recess would require a roll call vote.
Raising Points of Order — Any Senator who gets recognized by the Presiding Officer can raise a point of order making a procedural objection. Once the Presiding Officer rules, a Senator can appeal the ruling of the Chair, and Senators can demand a roll-call vote. One could imagine an extremely large number of procedural questions on which to vote.
Filing Cloture — If the Senate is not governed by a unanimous consent agreement or post cloture, a Senator who got recognized could move to proceed to a measure or series of measures and file cloture on the motion(s) to proceed. Two days later, the Senate would be required to vote on the cloture motion(s). The number of these motions is limited only by the number of items on the calendar.
A far less likely avenue of delay would be ordering the consideration of so-called “fast-track” statutes like the Budget Act or War Powers Act.
For example, any Senator could submit a concurrent resolution on the budget, and by precedent, if action has not yet been taken on a budget resolution for the coming fiscal year, then the resolution would be immediately placed on the calendar. Once on the calendar, any Senator could move to proceed to the resolution, forcing a roll-call vote on the motion to proceed.
This kind of legislative tomfoolery is a double-edged sword. It invites all kinds of retaliation — something particularly pertinent with Democrats having a healthy shot at flipping the Senate in November. If Democrats do, indeed, take control, it will be by the slimmest of margins. Minority Leader Chuck Schumer would have his hands full keeping his caucus united in the face of a payback scheme by bitter Republicans.
A real monkey wrench could be thrown into the mix at the Judiciary Committee hearings on any potential nominee.
Time for Review and Hearing — The Judiciary Committee customarily takes time to review the record of Supreme Court nominees. Democrats should demand that the Committee take this time before a hearing commences.
Objecting to Committees Meeting — Any Senator can object to unanimous consent for committees to meet more than two hours after the Senate convenes on a day in which the Senate is in session.
Full Hearings — Democratic Members of the Judiciary Committee could try to continue the proceedings of any hearing that the Chairman calls.
But with a Republican majority on the Committee, it will be difficult for Democrats to slow down the process too much.
The House also has some delaying tactics they could employ.
House Measures Requiring Senate Action
Impeachment — If the House of Representatives exercised its impeachment power, then the rules of the Senate require the Senate to immediately address that matter.
Speaker Pelosi has already threatened to impeach the president, but if she does, she may as well hand the presidency back to Trump. There’s nothing that would galvanize the Republican base more than another fake effort to impeach Trump.
Amendments Between Houses — If the House of Representatives passed amendments to Senate-passed bills now pending in the House and sent those over to the Senate, those messages between Houses would be privileged in the Senate. Thus, in the absence of cloture or a unanimous consent agreement governing the Senate floor, a Senator could ask that such a message be laid before the Senate and make motions in connection with the message that would require immediate roll-call votes or offer a motion to concur (or concur with an amendment) and file cloture, once again forcing a roll-call vote after two days.
How far will Democrats go to obstruct consideration of a new Supreme Court nominee in the Senate? The hysterical Democratic base believes this is an existential crisis and that any tactic would be justified in blocking a Trump nominee. Even more, rational Democrats think ignoring their base on this would dispirit them and could lead to a depressed turnout on Election Day.
This is one of those “hinges” of history upon which the fate of the republic has occasionally rested over time. Everyone can sense it. Now we’ll see if Mitch McConnell is up to the task.
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